One might ask why Cowan’s opinion on this subject should merit attention from those concerned with First Amendment rights. The reason: Cowan is the former Cathy Kuhlmeier, one of three former high school journalists who challenged the censorship of their school newspaper in a case that reached the United States Supreme Court.

In the 1982-83 school year, Kuhlmeier was a student in the Journalism II class at Hazelwood East High School in St. Louis County, Mo. The class published the school newspaper, The Spectrum.

In April 1983, the class teacher and newspaper adviser Robert Stergos left the school to take a job in the private sector. Another teacher named Howard Emerson took his place.

At the time, a new edition of The Spectrum was almost ready. The paper was to include articles on teen pregnancy and the impact of divorce upon teen-agers. Emerson believed he needed the approval of the school principal, Robert Eugene Reynolds, before going to press.

Reynolds objected to the two articles. He said that the references to sexual activity and birth control were inappropriate in the teen-pregnancy article. He also said that the parents of a student named in the divorce story should have had an opportunity to voice their opinion in the article.

Reynolds deleted two pages of The Spectrum. The students, including Kuhlmeier — the layout editor — objected.

“A few of us contacted Mr. Stergos and he suggested we contact the American Civil Liberties Union,” Cowan remembers. “We did and they told us we had a good case.”

Marilyn Kuhlmeier left the decision about whether to pursue the matter entirely up to her daughter. She also supported her decision. “I absolutely supported her and believed that the school principal was wrong in censoring the articles. I was very proud of my daughter for fighting for her rights,” she told freedomforum.org recently.

In the process, the three student journalists garnered several national awards for their commitment to the First Amendment. However, they did not prevail in the courts.

Filing suit
Kuhlmeier and fellow Spectrum staffers Leslie Smart and Leann Tippett sued the Hazelwood School District and several school officials in federal court in 1984. They contended that the school district’s actions in censoring their newspaper violated their First Amendment rights.

They argued that the school officials could not censor student expression unless they could reasonably forecast that the articles would cause a substantial disruption of school. They argued that the controlling case, supporting their view, was the Supreme Court’s 1969 decision in Tinker v. Des Moines Indep. Community School District.

In Tinker, the high court ruled that school officials violated the First Amendment rights of several public school students by suspending them for wearing black armbands to school to protest U.S. involvement in the Vietnam War.

The district court rejected the Hazelwood students’ claims, finding that school officials could restrict student speech in activities that are “an integral part of the school’s educational function” such as a school-sponsored newspaper.

The district court also ruled in its 1985 opinion that the principal’s actions were justified in order to show that the school did not support the “sexual norms of students” and to protect the privacy concerns raised by the articles.

In 1986, a three-judge panel of the 8th U.S. Circuit Court of Appeals reversed the district court. The appeals court ruled that the school newspaper was a public forum “intended to be and operated as a conduit for student viewpoint.”

The appeals court panel then determined that school officials could not censor the students’ newspaper articles unless they could show that doing so was “necessary to avoid material and substantial interference with school work or discipline.”

The school district appealed the decision to the United States Supreme Court. The district’s attorney, Robert P. Baine Jr., says now that he was “certainly hopeful” that the school would prevail once the Supreme Court decided to hear the case.

“You never know if the court will take your case or how they will rule, but I knew that our chances were certainly raised when the Court agreed to hear the case,” Baine recalls. “We felt that we had a good argument.”

The school district and Baine were concerned about the composition of the court. At that time, former Chief Justice Warren Burger had retired. President Ronald Reagan had nominated Robert Bork for the high court, but the Senate had failed to confirm him. This left a Supreme Court with only eight justices rather than the customary nine.

“We were afraid of a court ruling 4-4,” Baine said. If a higher court splits evenly, then the decision of the lower court stands. The 8th Circuit panel had ruled in favor of the students.

The school district pressed the argument that the school had greater authority over school-sponsored material and the curriculum. “The real issue in this case,” Baine says, “is that the school paper produced as part of a class was a matter of the school curriculum.”

“Ultimately, the board of education determined curricular content,” Baine says. “The school can require a student newspaper to be reflective of good journalism standards.”

Supreme Court decision
In January 1988, the Supreme Court voted 5-3 in favor of the school in Hazelwood School District v. Kuhlmeier. In his majority opinion, Justice Byron White established a new standard for student speech that is school-sponsored. White wrote:

“ … we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

In broad language, White reasoned that the school may censor student expression “that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex … or to associate the school with any position other than neutrality on matters of political controversy.”

Justice William Brennan, joined by Thurgood Marshall and Harry Blackmun, wrote a stinging dissenting opinion. Brennan wrote that “the case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.” Brennan accused the majority of approving of “brutal censorship.”

He concluded: “The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.”

Effect of the ruling
The decision was a resounding victory for school administrators and a defeat for student journalists.

Baine says the court majority got the case right. “Again, this is an issue of the control of curriculum. I think that the Tinker case had been abused. The original basis for Tinker was good but some lower courts had expanded Tinker to the point where school officials would have had to permit the printing of anything students wrote.”

“There is a saying that ‘all education is local,’ and I think the Hazelwood case stands for that principle,” Baine says.

Mark Goodman, executive director of the Student Press Law Center, disputes many of Baine’s points. “The case had nothing to do with what is being taught in the curriculum; it had solely to do with what students were allowed to publish,” Goodman says.

Goodman believes that the Supreme Court should have continued to allow student journalism to be judged under the Tinker standard. “The school curriculum was not in danger under the Tinker standard,” he says.

Even more disturbing, according to Goodman, is that “the legacy of Hazelwood is that it helped to create a generation of young people who don’t have a clue what the First Amendment is about when they leave high school. Many students are taught that there is only freedom of expression when those in power agree with what you are saying.”

Frank Susman, who helped argue the case on behalf of the students before the 8th Circuit but not before the Supreme Court, says that Hazelwood “was the start of the downfall for student First Amendment rights.” He says the legacy of the case is that “school officials have acquired more and more power over students.”

By the time the Supreme Court had issued its opinion in 1988, Cathy Kuhlmeier was a senior at Southeast Missouri State, where she majored in advertising and commercial art.

She did not attend oral arguments because she says her attorney, Leslie Edwards, did not maintain sufficient contact with her. Sadly, she says the ordeal at Hazelwood left a “bad taste” in her mouth for journalism.

She married 10 years ago and has children. She teaches preschool in Missouri. She says she does not regret standing up to the school officials even though she did not prevail.

And Cowan maintains that Principal Reynolds and the Supreme Court got the case wrong.

“I do feel that the legacy of the Hazelwood case is one of hurting student First Amendment rights. We should help students, and principals shouldn’t be able to control everything,” she says.

“I think we need to give students room to grow,” she says. “Students need to be given the chance to do in-depth stories — more than just stories about the soccer game or who was named prom queen.

“I am a firm believer that you have a voice and that if you don’t use your voice, things won’t change,” Cathy Cowan says today. “The neatest thing that happened to me recently was I got asked by the Indiana Press Association to come speak about the case. A girl came up to me after and said that I was a ‘freedom fighter’ and asked for my autograph.

“I never thought of myself as a freedom fighter, but I guess I did at least try to make a difference,” Cowan says. “Students don’t have enough First Amendment freedoms. There are a lot of very intelligent kids out there and we should listen to them more. Maybe if we did the world would be a better place.”

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

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The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

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1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

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State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.